The defendant and his lawyer may apply at any time for a review of the decision to remand in custody167 and propose an alternative to detention. However, once one review has found the detention justified, the defendant has to wait two months before requesting a new hearing.168 In any event the prosecutor has to check continuously whether the legal requirements for pre-trial detention still exist.
Remand prisoners should be kept separate from convicted prisoners unless exceptional circumstances apply. Untried prisoners should only be subject to restrictions which are necessary to serve the purpose of the detention or to maintain the order of the prison. Pre- trial detainees have to be allowed legal visits and communication with a lawyer must remain confidential. Since 2010 it has been a mandatory rule that pre-trial detainees have the right to a public defender.169
If the defendant is eventually acquitted he is entitled to compensation to the value of €25 for each day that he was held in pre-trial detention.170 However, the defendant will not be entitled to compensation if he has contributed to his detention in a grossly negligent or an intentional way.
Release pending trial: the law
Lengthy periods of pre-trial detention from three years to five and a half years171 have been found by the ECtHR to comply with the ECHR, as the German courts had provided adequate reasons for imposing detention and had dealt with the cases expeditiously. Where these elements are absent, however, the ECtHR has found Germany in breach of Article 5(3).172 German law has recently been
reformed in light of ECtHR findings that denial of access to the case file in sensitive cases resulted in unjustifiable restrictions on the defendant.173
Concerns have been raised by German defence lawyers that pre-trial detention is often used as a measure to “motivate” a confession and speed the investigation process.174 There have
also been reports that non-nationals are often remanded in custody in circumstances where German defendants would not.175 There has been a steady decrease in the number of pre- trial detainees as well as the general prison population in Germany over the past decade,
167
Sections 117, 118b StPO 168
Section 118 Para 2 StPO 169
Section 140 Para 1 no 4StPO
170
Section 7 Para 3 German Code of Compensation for Measures of Prosecution
171
Chraidi v Germany [2006] ECHR 899
172
See Erdem v Germany [1999] ECHR 193 and Cevizovic v Germany [2004] ECHR 399
173
Lietzow v Germany [2001] ECHR 89 and Garcia Alva v Germany [2001] ECHR 86, See: Suspects in Europe: Procedural Rights at the Investigative Stage of the Criminal Process in the EU. Ed Cape et al. p.80-81
174
Effective Criminal defence in Europe, Cape et al, p.271
175
Pre-trial Detention in the European Union: An Analysis of Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU, Kalmthout et al, 2009, p.426
57
which has been attributed to an increase in the use of non-custodial sentences such as fines and community service.176
176
58
18 months
Maximum length of pre-trial detention in Greece
64%
Percentage of pre-trial detainees in Greece who are foreign nationals
Greece
Under Greek law lengths of pre-trial detention vary according to the nature of the alleged offence, ranging from six months to one year. In exceptional circumstances the maximum length of pre-trial detention is 18 months.177 In 2010 there were approximately 3,500 pre-trial detainees in Greek
prisons, who made up 31% of the total prison population.178 In 2008 64% of pre-trial detainees were foreign nationals.179
Release pending trial: the law
Pre-trial detention may be ordered if there are strong indications that the accused has committed an offence and is deemed a flight risk or it is thought highly likely that he will commit other offences if released (this can be based on previous final convictions for offences of the same kind180). A person will be deemed a flight risk if:
the accused has no known residence in the country; or
the accused has taken preparatory actions to facilitate his escape; or
the accused has been a fugitive in the past; or
the accused has previously been found guilty of helping a prisoner to escape or has violated restrictions concerning his place of residence.
Article 282.2 of the Greek Criminal Procedure Code sets out the conditions which can be attached to release pending trial. These may include: imposing an order which prohibits a defendant from living in, or moving to, a certain place; a restriction on the defendant leaving Greece; an order prohibiting
communication with certain persons; and an obligation to pay a financial surety in order to secure release.
If the pre-trial detention is based on a warrant from the investigating judge, the defendant can appeal against it within five days from the start of his pre-trial detention. The defendant has no right to appear and be heard before the appeal court181 while it is considering his appeal. If the detention is based on a warrant of the appeal court itself, no legal remedy is provided.182 If there are specific reasons which justify the use of the pre-trial detention and those reasons have ceased to exist, the defendant can apply for a release. In any event, once the detention has lasted for six months, the court must determine whether the accused should be released or whether there is cause for them to remain in custody. The accused has no right to appeal any such decision.
177
Pre-trial Detention in the European Union: An Analysis of Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU, Kalmthout et al, 2009, p.451-453
178
Source: ICPS, 1 January 2010
179 2008 Council of Europe Annual Penal Statistics – SPACE I 180
Article 282.3 Code of Criminal Procedure
181 The “Judicial Council” 182
59